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O  ESPONSE  OF  HONORABLE  WILUAM  W.  MORROW. 
UNITED  STATES  CIRCUIT  JUDGE,  TO  THE 
SENTIMENT.  "LAW  IN  RELATION  TO  DIPLOMACY" 
PROPOSED  BY  MR.  WALTER  RISLEY  HEARN,  BRITISH 
CONSUL  GENERAL.  PRESIDING  AT  THE  BANQUET 
GIVEN  IN  HONOR  OF  THE  RIGHT  HONORABLE 
JAMES  BRYCE.  BRITISH  AMBASSADOR  TO  THE  UNITED 
STATES  AT  THE  FAIRMONT  HOTEL,  SAN  FRANCISCO, 
CALIF.,    ON    THE   EVENING   OF    MARCH   27TH,    1909. 


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MR.  CHAIRMAN: 

It  is  a  great  pleasure  to  me  to  have  the  opportunity  of 
participating  in  this  tribute  of  respect  to  our  distinguished 
guest'.  We  extend  to  him  a  cordial  welcome,  not  merely  because 
he  represents  the  Sovereign  of  a  great  nation,  but  because  of 
his  own  personality;  his  large  experience  in  public  affairs;  his 
intimate  acquaintance  with  our  American  form  of  government; 
his  good  judgment  on  political  questions;  and,  above  all,  his 
generous  valuation  of  our  opportunities  and  corresponding 
potential  worth.  "We  know  he  is  interested  in  the  problems  we 
are  trying  to  solve  here  in  California,  and  that  he  appreciates 
the  difficulties  we  have  to  encounter.  He  belongs  to  that  class 
of  few  men  described  by  Professor  Hudson,  the  Shakespearian 
scholar,  as  men  who  by  nature  take  a  deep  sympathetic  interest 
in  conditions  wholly  outside  of  themselves,  and  with  such  sym- 
pathy exercise  a  capable  and  candid  judgment,  and  willing,  I 
am  sure  in  our  case,  to  overlook  our  many  shortcomings. 

The  subject  to  which  I  have  been  asked  to  respond  is: 
**Law  in  Relation  to  Diplomacy."  This  is  a  large  subject,  and 
has  a  wide  range  for  discussion.  It  is  far  too  wide  for  this 
^  occasion  unless  I  should  treat  it  as  it  has  been  treated  by  some 
^  very  learned  authors  who  declare  that  law  has  no  relation  what- 
ever to  diplomacy;  or,  what  is  the  same  thing,  the  international 
affairs  of  nations  are  not  regulated  by  law.  Law,  they  say,  "is 
the  command  of  a  political  superior  addressed  to  a  political 
inferior  in  the  state, ' '  or,  as  defined  by  Blackstone,  it  is  a  "  rule 
of  civil  conduct,  prescribed  by  the  supreme  power  in  the  state, 
commanding  what  is  right  and  prohibiting  what  is  wrong." 

Now,  as  there  is  no  supreme  power  in  the  family  of  nations — 
all  nations  being  equal — it  is  said  there  can  be  no  rule  of  con- 
duet  as  between  nations  that  can  properly  be  termed  law :  First, 
because  there  is  no  superior  legislative  body  to  enact  such  a  law. 
Second,  there  is  no  supreme  court  of  nations  or  international 
tribunal  in  which  disputes  of  an  international  character  can  be 


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determined.     Third,  there  is  no  sheriff  to  execute  the  decree  of 
the  court,  supposing  one  to  have  been  delivered. 

But,  notwithstanding  these  objections,  we  know  that  there 
are  rules  of  conduct  for  nations  as  well  as  individuals,  and,  some- 
how, these  rules  of  conduct  are  observed,  and  their  commands 
enforced.  How  does  this  come  about?  Well,  we  are  told  that 
what  we  call  international  law  or  law  of  nations  is  international 
morality  or  ethics,  or  international  courtesy  or  convention,  or 
international  comity,  as  distinguished  from  a  rule  of  law. 
Austin,  one  of  England's  greatest  law  writers,  was  of  the 
opinion  that  the  proper  name  for  such  a  rule  of  conduct  among 
nations  was  "positive  international  morality."  He  contended 
that  even  if  such  a  rule  of  conduct  should  become  universal 
and  enforced  by  all  nations  alike,  it  would  still  not  be  law, 
because  it  would  not  be  a  command  given  and  enforced  by  a 
superior  power.  Under  these  definitions  it  would  simply  be  a 
rule  adopted  as  part  of  a  moral  sj'stem  of  the  state  in  its  rela- 
tion to  other  states,  just  as  an  individual  on  the  first  day  of 
January  may  resolve  to  "turn  over  a  new  leaf"  and  agree  with 
a  friend  to  observe  some  rule  of  conduct  as  a  part  of  his  moral 
responsibility  to  the  community  in  which  he  lives.  But  this 
resolution  or  agreement,  however  positive,  does  not,  so  they  say, 
make  it  a  law  for  the  individual,  nor  any  more  does  the  ad- 
mitted moral  duty  of  a  nation  make  that  duty  a  law  governing 
nations. 

But  as  we  would  say  judicially,  the  weight  of  authority 
is  opposed  to  this  view,  or  rather,  I  should  say,  there  is  a  prac- 
tical view  that  must  not  be  overlooked.  We  understand  that 
rules  of  conduct  grow  up  among  nations  as  among  individuals 
by  force  of  custom  and  become  law,  as  custom  grew  into  the 
common  law  of  England  and  this  country,  and  that  these  cus- 
tomary rules  of  conduct  may  be  expanded  and  added  to  by 
diplomatic  action  and  by  treaty  and  convention  between  nations, 
and  we  know  that  in  Great  Britain  and  in  this  country  these 
rules  of  conduct  applicable  to  international  affairs  are  recog- 
nized, accepted,  and  enforced  by  these  nations  as  law,  and  since 
the  time  of  Bentham  in  1789  they  constitute  a  system  which  he 


called  international  law,  a  law  which  "must  be  ascertained  and 
administered  by  the  courts  of  justice  of  appropriate  jurisdiction 
as  often  as  questions  of  right  depending  upon  it  are  duly  pre- 
sented for  their  determination." 

Now,  what  relation  has  this  law  to  diplomacy?  Manifestly 
a  relation  of  the  greatest  importance.  The  peace  and  welfare 
of  nations  depend  upon  it,  just  as  the  peace  and  welfare  of  a 
community  depend  upon  the  law  governing  the  community. 
The  commercial  and  financial  affairs  of  the  world  are  becoming 
more  and  more  intimate  and  more  and  more  interdependent. 
Let  me  illustrate  my  meaning  by  referring  to  a  very  interesting 
case  in  this  state.  In  the  year  1888  a  young  man  by  the 
name  of  McDonnell  was  arrested  in  San  Francisco  for  having 
in  his  possession  a  counterfeit  plate  or  die  from  which  could 
be  printed  counterfeit  five-pound  Bank  of  England  notes.  No 
such  notes  were,  however,  found  in  McDonnell's  possession,  and 
there  was  no  evidence  that  any  counterfeit  notes  had  ever  been 
printed  from  the  plate,  and  none  were  found  in  circulation  in 
this  city.  McDonnell  was  indicted,  tried  and  convicted  under 
the  Penal  Code  of  this  state,  which  provides,  among  other  things, 
for  the  punishment  of  a  person  "ha\ang  in  his  possession  any 
die  or  plate  made  use  of  in  counterfeiting  bank  notes  or  bills." 
It  was  contended  on  behalf  of  the  defendant  that  this  statute 
was  only  intended  to  protect  our  own  banks  from  the  counter- 
feiting of  their  notes  or  bills,  and  not  the  paper  of  foreign 
banks.  This  defense  was  not  without  support.  The  case  was 
appealed  to  the  Supreme  Court  of  the  state,  then  as  now  pre- 
sided over  by  that  eminent  jurist,  Chief  Justice  Beatty,  who 
is  present  here  this  evening.  In  the  Supreme  Court  it  was 
further  contended  that  the  offense  committed  by  McDonnell,  if 
any,  was  against  international  law,  and  that  under  the  Con- 
stitution of  the  United  States,  the  Federal  Government  alone 
punished  offenses  against  that  law,  citing  the  case  of  United 
States  V.  Arjona,  120  U.  S.  479.  But  the  Supreme  Court  of 
the  state  held  that  McDonnell's  offense  came  also  within  the 
purview  of  the  police  power  of  the  state  under  the  provisions 
of  the  Penal  Code.     The  Court  said:  "To  say  to  Ihe  contrary 


would  be  to  declare  without  proper  foundation  that  the  legis- 
lative assembly  of  our  state  had  deliberately  made  California 
an  asylum  for  those  evil-disposed  persons  who  might  desire  to 
injure  the  currency  of  foreign  nations,  or  to  defraud  our  own 
citizens  by  passing  off,  upon,  or  selling  to  them  counterfeit  bills 
of  such  nations."  This  case  is  reported  in  80  Cal.  285.  Here 
was  a  law  enforced  by  the  state  held  to  be  broad  enough  to  cover 
an  offense  primarily  against  a  foreign  state,  notwithstanding  its 
international  character.  I  think  this  case  illustrates  very  forci- 
bly our  relations  with  other  nations  in  the  enforcement  of  in- 
ternational law  under  the  police  power  of  the  state. 

These  relations  involve  what  are  called  private  rights  as 
well  as  public  rights,  and  are  based  upon  the  principles  of  inter- 
national law  that  have  been  developed  and  established  by  a  wise 
and  far-seeing  diplomacy.  This  is  further  illustrated  by  the 
character  and  number  of  international  congresses,  conferences 
and  conventions  that  have  been  held  in  the  last  fifty  years.  Be- 
tween 1865  and  1895 — a  period  of  thirty  years — there  were  ten 
most  important  monetary  and  diplomatic  international  confer- 
ences v.^hich  resulted,  as  you  know,  in  the  present  gold 
standard — an  essential  element  in  the  universal  solvency  of 
credit.  Diplomacy  also  has  brought  about  a  number  of  inter- 
national postal  conferences,  and,  as  a  result,  the  present  uni- 
versal postal  union — a  mai-vel  of  simplicity  and  economy  in  the 
social  and  business  affairs  of  the  world.  The  international  con- 
ferences relating  to  telegraphic  correspondence  have  also  re- 
sulted in  a  permanent  international  bureau  at  Berne  in  Switzer- 
land; and  in  respect  to  the  most  recent  and  remarkable  of  all 
inventionsi — wireless  telegraphy — there  have  been  two  confer- 
ences, one  in  1903  and  one  in  1906.  At  the  last  conference 
an  international  bureau  was  established  and  provision  made 
that  disputes  should  be  submitted  to  arbitration. 

Then  there  are  the  international  peace  conferences  at  the 
Hague — the  first  in  1899,  and  the  second  in  1907.  These  related 
to  the  affairs  of  nations.  At  the  last  of  these  conferences  an 
international  prize  court  was  established  to  protect  the  rights 
of  neutrals  in  the  time  of  war,  and  a  foundation  laid  for  a  great 


court  of  international  arbitration  to  be  realized,  it  is  believed, 
at  the  third  international  conference  to  be  held  at  the  Hague 
in  1915. 

From  other  conferences  at  Geneva  and  the  Hague  has  come 
the  International  Ked  Cross  for  the  relief  of  the  sick  and 
wounded  in  the  time  of  war  and  to  mitigate  the  sufferings 
caused  by  pestilence,  famine,  fire  and  flood  in  the  time  of  peace. 

Then  there  are  the  commercial  relations  arising  between 
the  nations  respecting  navigation  and  customs  duties,  the  latter 
of  which  appear  on  our  statute  books  as  discriminating  and 
countervailing  duties,  levied  upon  imports,  and  which  have  for 
their  ultimate  purpose  the  establishment  of  reciprocal  relations 
among  the  commercial  nations  with  respect  to  exports  and  im- 
ports. 

But  this  reference  to  congresses,  conventions,  and  confer- 
ences and  their  results  need  not  be  extended,  altho  there  have 
been  many  hundreds  in  the  last  fifty  years.  Those  referred  to 
indicate  the  efficient  work  of  diplomacy  during  that  period, 
and  more  particularly  during  the  last  twenty-five  years.  They 
have  enormously  promoted  the  extension  of  international  law 
to  both  public  and  private  affairs,  and  they  have  all  moved  in 
the  direction  of  a  unity  of  nations  and  the  peace  of  the  world. 
We  accordingly  place  to  the  credit  of  diplomacy  and  sound 
statesmanship  these  splendid  achievements  for  international  law 
in  opening  up  the  highways  and  byways  of  the  world  to  naviga- 
tion, commerce,  travel,  education,  labor,  and  civilization,  and 
we  realize  more  than  ever  that  "peace  hath  her  victories  no  less 
renowned  than  war." 


^2>7^f<i<i^Vu 


UNIVERSITY  OF  CALIFORNIA  AT  LOS  ANGELES 

THE  UNIVERSITY  LIBRARY 

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